Microsoft Sued Over Bing Trademark 191
mentus writes "Bing! Information Design, a design company from Missouri, is suing Microsoft over 'intentional interference' with their trademark and claiming Microsoft had knowledge of the trademark when it relaunched its rebranded search engine. Microsoft legal representative Kevin Kutz states that he believes the case will be dismissed and that Microsoft 'always respect[s] trademarks and other people's intellectual property, and look[s] forward to the next steps in the judicial process.'"
Must wait to have all info (Score:3, Funny)
I reserve my opinion until Mat Perry's declarations on the subject.
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I reserve my opinion until Mat Perry's declarations on the subject.
I reserve my opinion until I have your opinion.
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I must be having a case of the Mondays. It took me WAY too long to get that joke.
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I must be having a case of the Mondays. It took me WAY too long to get that joke.
Probably a case of subconscious self preservation of sanity.
Trapped! (Score:5, Insightful)
However, a trademark application for the name was not filed until May - when rumours about Microsoft's new product had already spread widely across the internet.
Microsoft, meanwhile, filed its own trademark applications for the name in March - for a variety of uses, including search engine software, interface software, advertising, telecoms and for "providing a website and website links to geographic information, map images and trip routing".
Aren't you obliged to protect your mark? Seems to me they have nothing on MS.
Re:Trapped! (Score:5, Informative)
I wonder why people always start claiming their rights so late.
Because obtaining trademarks is costly and time-consuming, and because an unregistered trademarks is still a protected mark. This is a fairly small company who, until recently, probably found that an unregistered trademark was sufficient for them. Now that Microsoft has started using the name, they've decided they need to protect themselves further.
Aren't you obliged to protect your mark?
They are. They filed suit and began the process of registering their trademark. They've been using it since 2000, so they should have no problem getting the trademark, since the system is "first to use", not "first to file".
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No, it's not required to put "TM" next to a trademark. While it might be harder to enforce trademark protection with some unregistered marks, the use of the primary identification component of a company's name is relatively easy (the relative word is the important one here, not the "easy") to defend. Usually unregistered trademarks are delineated by area of geographical influence. In this case, if Bing! IS wins their suit, Microsoft would be prevented from using the trademark within Bing! IS's area of geogr
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ID. Bing! ID. I apparently am not to be trusted with remembering simple things from one moment to the next. Carry on!
Re:Trapped! (Score:4, Insightful)
THe company is sueing now because the amount of advertising Microsoft has put into the search engine Bing is causing confusion with the customers of the company that is sueing Bing. The time of the confusion is what would matter for the start of the lawsuit.
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More to the point, it would be *really* hard to prove consumer confusion between a design firm and a Internet search engine, even if they were aggressively defending their trademark.
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Yes, because an ad campaign of "Go to Bing for all your web needs" and "Go to Bing for all your web needs" would be completely unrelated. They are two "web services" that have the same name. And apparently Microsoft found out about the little one and decided they didn't have to act. They either predicted the suit and expect
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They are both computer software though, so Firebird (the database) had every right and obligation to protect their name. It's not like Firebird (the database company) was suing a mom & pop shop which makes handmade socks or sandwiches or something else in an unrelated industry.
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I don't remember Firebird vs. Firebird as a legal case, bur rather as a PR case. And I was (and am) totally on Firebird's (the database) side, even though I've never used it. They had the name first.
Technically, I'm not sure they could have won a court case, as the two names WERE used in separate areas, but they should have been more respectful. FireFox, however, is a really nice name. (And, IIRC, Firefox changed it's name from Phoenix to Firebird because of a legal suit, so that may be what you're reme
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Re:Trapped! (Score:5, Insightful)
That's part of what makes this case potentially meaningless, in a moral sense, not a case law sense ... the fact that there are deep pockets involved and it may well be decided not on merits, but on who can throw enough money at protecting their interest.
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always respect[s] trademarks and other people's intellectual property, and look[s] forward to the next steps in the judicial process.
So a moral vacuum soon filled by buckets of evil. Nature hates a vacuum and none is more easily filled than a vacuum in a courtroom. With buckets of evil. Got that?
Re:Trapped! (Score:5, Informative)
"Prior art" is not a trademark-related term.
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True, but since trademarks are "first to use" not "first to file", showing that:
1) You had your brand to market first, and
2) Their brand is interfering with your brand
allows you to make an excellent case that it is your mark, and not theirs. Sounds a lot like prior art, though in the "I said it first!" version, rather than a "public domain!" result.
This is what I also know to be true, if you are in the market, for years, first using that, how the heck could another company get "trademark" over you, no matter when you and they file. Even if the St Louis company files (for trademark) after Microsoft, they have been using "Bing" for almost a decade longer. Its game over.
As for enforcing their rights to the term, they are doing it now.
And do not forget that there are two other players involved per the article as well. Per the article:
In addition, two other companies are also taking action against Microsoft over what they say are trademark infringements: a web-based shopping service called BongoBing and software company Terabyte, which has a product called BootIt Next Generation, or Bing for short.
So today we kn
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In addition, two other companies are also taking action against Microsoft over what they say are trademark infringements: a web-based shopping service called BongoBing and software company Terabyte, which has a product called BootIt Next Generation, or Bing for short.
So today we know about three possible claimants. Do you think we will hear about two more tomorrow? Three? Four? After all the term "bing" has been a huge part of the RAP scene since the beginning; probably apart of some other scene before RAP. This is all too funny, or err ironic.
I think the fact that we have three claimants, who apparently aren't suing each other, but are suing a multibillion dollar company for a quick buck does indicate what the real motives behind their trademark protection action are. I mean, all three are apparently in the same market as Microsoft's search engine, but they are not protecting their trademark from each other? Sounds like they forfeited their trademark. Or do you only need to protect your trademark from large companies with deep pockets?
But why would it be intentionally similar? (Score:5, Insightful)
If a business or trademark name is "deceptively or intentionally similar" to an established entity, it is technically in violation by definition.
The thing is that nobody had heard about Bing before MS. As such, MS wasn't trying to benefit from the fame that the name already had. If they began manufacturing footwear and chose Nike for their productname, I could see the motivation: Appearing to relate to an established entity in order to sell more. But creating a search engine called "Bing"? I don't think any of us had the first reaction of "Ah, like that Bing Information Designers?" but we all thought "Ah, what a stupid name. :D"
I'm not saying that MS didn't know of the company. They certainly should have researched more. But I can't understand why would they intentionally choose something deceptively similar to something that nobody had never heard of before. While MS knows that they can face anyone in court, I would assume their sizeable legal team had forced them to adopt strict and heavy processes to avoid this kind of stuff. To me this seems more like a fuckup committed by some very low level employees than anything decided by high management.
Re:But why would it be intentionally similar? (Score:5, Funny)
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I think it is a matter of: even in whatever city they are in, now when they even do something like put something in the classifieds or whatever they do, it will say Bing and people will directly think of Microsoft's Bing.
I could see that hurting business.
Re:But why would it be intentionally similar? (Score:5, Interesting)
But then again, Sony sued Sonny's Restaurant in Boston (I think), because people were pronouncing it 'so-nee'. Sony won.
Ok, this might only relate tangentially to the story but I still think it's funny in a flat cat kinda' way.
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I'm expecting Dave Bing (formerly of the Detroit Pistons and Bing Steel) to chime in on this, as well as the estate of Bing Crosby. :)
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Ooh, I want to see the cartoon Bing burst out with White Christmas. That'll show 'em!
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That must be it. Seems like I read about it in late 90's, as an example of 'evil Sony' (likely in slashdot story). Coulda' sworn the defining bit that I remembered was the name being spelled differently but sounding the same.
Cool beans that you found the real details of it. Love the bit about her being pitted agains the maker of Watchmen's and Betamaxes.
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bdenton42 found the details [slashdot.org]. Turns out the lady running the restaurant in Baltimore (knew it was some city starting with 'B' east of the Mississippi) was known as Sony (same spelling) and was trying to register her restaurant in the phone book as Sony's. And so yeah, Sony defended their trademark, just in case anyone getting a Philippino based lunch got confused.
As for the Sonny's part, yeah, that's just my age creeping up on me. Coulda' swore I remembered the detail part of it being 'spelled differently bu
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The thing is that nobody had heard about Bing before MS.
I had. She's a friend of our family. "Bing" is a fairly common Chinese given name. And, come to think of it, lots of people have heard of Bing Crosby. I think that would be significant if this were about copyright, but as this is about a trademark I suspect it isn't.
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No, they were obviously naming it after this Bing [wikipedia.org] (yes, you do have to (v)grep for "bing" in the list. I'm sorry that I can't help your laziness):
Bing talks extremely fast and often employs circular logic.
The Bing commercials are such obvious parodies of this!
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Not me. I thought "Chandler Bing" then the "ah, what a stupid name."
I thought it was a joke at first. Seriously.
Oh and ....
Bing
Is
Not
Google
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The thing is that nobody had heard about Bing before MS
Certainly their customers had, and anyone who had ever visited their website or seen their website or heard of them via word of mouth. Are you saying that large companies should be allowed to freely take over trademarks used by very small companies, because, to use your term, "nobody" has heard of the majority of small companies? Fortunately trademark doesn't work the way you think it does; legitimate small companies thankfully also have the same right to trade under a mark without it being taken as large c
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"That's a good name, let's steal like we do all our IP"
Yeah, but... Bing? That's like breaking into Fort Knox so that you can steal paper clips.
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First time? (Score:5, Informative)
Uh, did this lawyer just fall off the turnip truck or what? Hate to tell you this Skippy Suit, but this ain't the first time Big Daddy Desktop has been in a courtroom for shit like this.
Microsoft definition of being "respectful" is cutting a check large enough to be bought out or go away.
Re:First time? (Score:5, Insightful)
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What makes you think his client wants anything different.
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Re:First time? (Score:5, Funny)
All right boys, buy him out!
*smash, crash, crush*
Mr. Simpson, you didn't think I got this rich by writing checks did you?
From TFA (Score:5, Insightful)
"...a trademark application for the name was not filed [by the plaintiff] until May - when rumours about Microsoft's new product had already spread widely across the internet."
"Microsoft, meanwhile, filed its own trademark applications for the name in March - for a variety of uses, including search engine software, interface software, advertising, telecoms and for 'providing a website and website links to geographic information, map images and trip routing'."
Says it all really. This company didn't even bother trying to establish trademark rights until two months after Microsoft, after news of the new engine had leaked. This screams trademark troll.
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Legal speak for, "we will crush you."
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Legal speak for, "we will crush you."
Sung by lawyers to the tune of "We Will Rock You".
Re:From TFA (Score:5, Insightful)
Says it all really. This company didn't even bother trying to establish trademark rights until two months after Microsoft, after news of the new engine had leaked. This screams trademark troll.
I know absolutely nothing about this case, so take my comments with as much salt as you feel necessary...
But, just to play devil's advocate...
It could also be that the company never felt the need to establish trademark rights until news of the new engine leaked. Perhaps this Bing! company was fairly unique in the area it does business in... And if anyone said Bing! they thought immediately of this company... But with Microsoft's re-branded search engine folks now think of Microsoft instead of this Bing! company.
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Having been on the wrong end of a trademark claim I can tell you that that doesn't matter in the slightest.
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Actually it is Microsoft's fault. They have a responsibility, as all companies do, to be sure that their company and product names are unique enough in whatever markets they choose to do business that they will not cause confusion.
If consumers are harmed by the confusing similarity of product names or company names, this is a cause of action. Microsoft should have conducted a thorough search before naming Bing to be sure it wouldn't cause confusion. Or if they really liked the name Bing, they should have co
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Re:From TFA (Score:5, Insightful)
No, it doesn't really say anything. They were a small fish happily using the trademark for the past nine years without any trouble. There was no need for them to register the mark, which is still legally protected even without registration. Trademark registration is expensive and takes years to complete, so many small companies are content to use unregistered trademarks.
However, now that Microsoft has stepped on their turf, they've decided they need additional protection, so they began the process of registering the mark. They should have no problem getting that registration since they likely have ample proof that they've been using it for nine years (marketing materials, print advertisements, maybe some TV commercials, etc).
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Trademark registration is expensive and takes years to complete, so many small companies are content to use unregistered trademarks.
Right but only if by expensive you mean about $500 and by years you mean 6 months. What would I know though? I've only actually been through the entire process recently. I'm sure you talking out of your ass is a much more reliable source of information.
I've never been through the process, but I've researched it, so I'll admit it's possible that you are right. However, when I researched the process in the past I was informed that it was more like about $2000 and 2 years, although 1) I was researching Canadian Trademark Law, and 2) it could take less time if you hire an expensive lawyer, but obviously that increases the cost.
Nevertheless, even if it's only $500 and 6 months, many small companies simply don't see any benefit in doing it, considering the fact
Different fields (Score:4, Insightful)
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bing.biz (Score:2, Informative)
Hmm. Microsoft got bing.com a while ago
WHOIS results for bing.com
Created on..............: 1996-01-28.
The Wayback Machine shows the first Microsoft Bing.com site (Coming Soon!) in 2003.
Now, Bing! is Bing.biz which is registererd (in Madeira, Portugal)
Domain Registration Date: Wed Nov 07 00:01:00 GMT 2001
and it says ion the web site
Bing! is a small design firm started in 2000 in St. Louis, Mo.
So, I am not a lawyer, and this is not legal advice, but it looks to me that Microsoft started thi
Re:bing.biz (Score:5, Insightful)
Hmm. Microsoft got bing.com a while ago
WHOIS results for bing.com
Created on..............: 1996-01-28.
Correct me if I'm wrong, but surely all that means is someone registered it in 1996. It may have changed hands several times before being taken over by Microsoft.
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If Microsoft already own a trademark on Bing I can't see how this case would have got even this far.
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If Microsoft already own a trademark on Bing I can't see how this case would have got even this far.
Why ? Bing! just sued. We don't know the back story. Maybe they tried to contact MS when Bing search came out, and got a run-around. Maybe it took a while to get a lawyer to do this on contingency. We just don't know (yet).
It is possible to have multiple trademarks on the same name, if the uses are sufficiently different. Bing.com does search. Bing.biz does design (apparently for corporate imagery). It is not
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Only if that domain name was being used for something like search or advertising. If it was Bing Dry Cleaners (fictional), then they might own a trademark on Bing in the laundry services industry, but not search.
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And yet Apple Records and Apple Computer still manage to both exist as trademarks. Although the whole iTunes thing really messed that up. Worked fine until Apple got into the music business [wikipedia.org]
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Correction: Apple Computer now exclusively owns the trademark as part of the iTunes settlement.
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I just made a comment about that myself. Apple Computers signed a contract promising not to get into the music business and then breached it. Those Brits at Apple Records are just too nice to get really nasty over the whole affair.
Effectively Apple Records allowed Apple Computers to infringe on their trademark. But Apple Records was within their right to blast Apple Computers from not only stealing their trademarked name, but also their trademarked logo.
Trademarks are different from patents in that they onl
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AMF, Inc v Sleekcraft Boats, 599 F.2d 341 (C.A.9) 1979 established a precedent, including 8 criteria for trademark infringement - one of which being "Proximity of the goods" http://en.wikipedia.org/wiki/Trademark_infringement [wikipedia.org]
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Most trademark cases I've read about are for two very different products with similar names. For instance, all the Husker trademark cases in Nebraska. The "Huskers" are athletic programs at the University of Nebraska, yet they have successfully leveraged their trademark over anything named "Husker" in the state.
The Wikipedia entry isn't clear if you need all 8 criteria, or merely a combination of them.
In the Apple case, you aren't simply grabbing a common name, you're grabbing the exact name of a well known
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The word is "Apple", which is the name of a common fruit. The "well known brand" is mainly a record company that doesn't seem to have done much since the mid-seventies.
The Apple Corps logo is a pretty realistic depiction of an apple, versus an iconified representation of an apple with a section missing:
http://www.tech2.com/media/images/img_3833_apple-vs-apple_450x360.jpg [tech2.com]
The only thing it has in common is that it is some sort of depiction of an apple. Not a copy in my mind.
The only thing that should have gon
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Did you read the link in the post you replied to?
After launching iTunes, Apple Inc. (the computer company) was sued by Apple Corps (the record company) for breach of contract. Apple Corps lost the case, and Apple Inc. They later settled the trademark dispute with a settlement which handed over all trademarks and the Apple Corps logo over to Apple Inc. However, the agreement also gives Apple Corps a licensing agreement to continue using those trademarks.
Long story short, Apple Records got their ass handed to
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I already replied, but I realize I wasn't as clear as I should be.
Technically two companies named Bing can have seperate trademarks basically if they agree to do so. If neither tries to establish and enforce its trademark exclusively, everything is fine.
Bing! has a right to try and enforce Bing exclusively as a trademark. Both sides have a bit of case here it seems, given that Bing! existed first, but they didn't truly start to enforce their trademark until after Microsoft started to advertise their Bing se
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I can't just open a new business called General Motors All Donkey Erotica, because General Motors has a trademark on General Motors
Of course you can. You're forgetting why it's called trademark. Your trademark rights apply only within your specific trade. Then again, I'm sure some creative lawyer could find away to connect GM to donkey erotica.
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There's a part of trademark law called "anti-dilution", which says that if your mark is "famous", it can be enforced against anyone, not just anyone in the fields you use the mark in. It's a really stupid and evil provision, but it exists. So no Kodak bicycles, and no General Motors Donkey Erot
Re:bing.biz (Score:4, Informative)
Microsoft did not own bing.com until March 4, 2009 when the domain ownership changed from "Davryn Pty Ltd" in Melbourne, Australia to Microsoft. Since 2002 the name bing.com has had several owners, including some guy in Michigan, someone in Denver; Palo Alto, CA; was transferred to an Australian company in 2007 until MS bought it in 2009. So no, Microsoft does not have long-standing claims on the Bing name, at least based on their domain registration.
(Reference: Domaintools.com Whois History records).
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Interesting. The Wayback machine [archive.org] reveals that during the Australian Period bing.com was a "print your email out and snail mail it" utility.
So, Microsoft could be in trouble, unless (which I doubt) there is a history of use in trade which someone kept track of and eventually sold to Microsoft.
obviously not copied .. (Score:2)
More (Score:3, Funny)
Wouldn't it be a good thing? (Score:3, Insightful)
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Am I alone thinking that if this company wins their suit maybe Microsoft would actually rename their search engine to something not as cringeworthy?
You're both alone and wrong. It's just a buggy, ad-ridden front end for the WolframAlpha [wolframalpha.com] search engine and serves as a distraction from what Microsoft Activist Icahn and his attack dogs started doing to Yahoo.
After re-branding Live Search as "Bing", to leave the baggage associated with the old name, they also struck a deal so that Bing is a front-end for Wolfram Alpha [techcrunch.com] plus whatever Live Search might have had. So to get those results unmodified, you don't have to go through M$ filter, you can go straigh
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I was told by a Microsoft engineer who should know that the Bing name was picked specifically because it could be used as a verb (as in, "I binged Nancy before I asked her out."). I had just made a joke on the (assumed) unfortunate closeness in sound of binging someone and banging someone. An awkward silence ensued, and he told me that was a feature, not a bug.
All I can say is that they may not get out much.
Bing! (Score:2)
Ah, I see you have the lawyer that sues Bing! He is my favorite. You see, he works on a contingency basis and that way it comes under the monthly current budget and not the capital account.
Questionable. (Score:2)
Frankly, I think it's too bad for these guys. If they felt they had such a distinctive identity they should have trademarked it sooner. They had 9 years to do so and didn't bother until Microsoft introduced their rebranded search engine. Being in the design industry myself, we've recommended clients trademark their identities a number of times. These guys, working in the same space should have realized the same for themselves.
They don't even come up in the first 10 pages of a Google search so they apparentl
Hopefully MS fights it to the death (Score:2)
Since it is such an obvious case, it is clear that MS's only motivation to settle would be to avoid costs. Hopefully, MS sees the moral hazard in encouraging such blatant criminal behavior, and instead decides to counter sue.
The very first complaint filed should be against the plaintiff's attorney, for failing to do due diligence. (This is a law in most states, I swear.)
One word (Score:4, Informative)
Stacker.
I thought Ned Ryerson held the Bing copyright (Score:2)
"Ned. Ryerson! Needlenose Ned, Ned the Head, come on buddy, Case Western High. Ned Ryerson, I did the whistling bellybutton trick at the high school talent show. Bing! Ned Ryerson, got the shingles real bad senior year, almost didn't graduate. Bing again! Ned Ryerson, I dated your sister Mary Pat a couple times til you told me not to anymore."
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They sold the Lindows trademark to Microsoft for $20 million?
1. Start new Linux distro with a name that sounds like "Windows", but not too close (ex: not "Wimdows" or "Winblows"). At this point I would suggest "Bingdows" just for the fun of it.
2. Wait for Microsoft to sue for trademark infringement
3. Have Microsoft's case thrown out
4. Ask Microsoft to respect you [slashdot.org]
5. Profit!
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Only if you have the money for afford lawyers in the first place.
AOL threatened to sue all the GAIM developers to kingdom come. It didn't matter that AOL was in the wrong. They can afford lawyers, and the GAIM developers were poor college students. GAIM was renamed Pidgin.
My mother recently got screwed over pretty bad by a big company. She was completely legally in the right, but it doesn't matter when only one side can afford a lawyer.
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>who eventually sold the Lindows trademark to Microsoft for $20 million.
How horrible. 20 million!
Sigh, I love how /. is anti IP until it involves MS, then its all "WE MUST PROTECT COPYRIGHT/TRADEMAKRS/PATENTS AT ALL COSTS."
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Microsoft should never have been allowed to trademark a generic computing term. Then they should not have bee
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It seems like Microsoft respected Lindows to the tune of $20 million.
What message am I supposed to be taking from your post? "Microsoft doesn't respect IP! They just pay massive amounts of cash for it."
Unless your "yeah, right" *wasn't* intended as sarcasm, in case I guess it all makes sense.
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I was hoping a meme would catch on, to call it "binge," but that never happened.
I just call it "google"...
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http://www.techcrunch.com/2009/06/26/video-introducing-bing-the-better-way-to-google/ [techcrunch.com]
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http://www.techcrunch.com/2009/06/26/video-introducing-bing-the-better-way-to-google/ [techcrunch.com]
Yeah, I knew somebody would provide that link... :) That was a good one...
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I think there was a little kid's show up in Canadia called Bing and Bong.
Ok, just found it on Wikipedia: Tiny Planets [wikipedia.org], starring Bing and Bong. This show was back in 2000/2001 so doubt it figures in anything with this story.
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Are you suggesting a new name for Bing -- perhaps "Bung"?
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Naming your company after a common object is hardly stealing, I don't know where you would even have gotten that idea. You're not an Apple Records attorney, are you?
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Apple Computer paid Apple Records some $500M or so to buy the trademark rights from the record company in 2007.
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I seriously doubt anyone in the Slashdot crowd will defend Microsoft. No doubt this entire story will fill up with comments about how Microsoft is evil and doesn't respect trademarks (as it already is).
I'm drawing a comparison to a company that seems to be well loved by the Slashdot crowd that is doing the same thing.
If we're going to call out Microsoft for not respecting trademarks, why does Apple get a free pass?
I think it is a valid question.
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Uuum, Slashdot? I thought you were with me on this one? How about actually commenting on where you disagree, instead of trolling with your mod points?
Or did you misunderstand me?
I said, that they can’t have the cake (respect trademarks) and eat it too (want a case to be “dismissed”, that is about Microsoft not respecting someone’s trademark).
I’m seriously interested how you, the moderator, will justify this obvious doublespeak.
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I am not a lawyer, but that may not be relevant. You do not have to file to have a valid trademark.